Taylor v. . Insurance Co.

OlaeksoN, J. The defendant, Home Insurance Company, prays the court to decide: (1) That the plaintiffs should be nonsuited for failure to prove due filing of proofs of loss. (2) If the plaintiffs should not be nonsuited, that the judgment should be modified by reducing the recovery to $1,200. We think the findings of fact in the court below, which were supported by the evidence, are such that the contentions above set forth by the defendant Home Insurance Company, cannot be sustained. Defendant contends that plaintiff proved neither due filing of proof of loss nor waiver thereof. We think the theory on which the case was tried and the undisputed facts constitute a waiver of the filing of proofs of loss. In Mercantile Co. v. Insurance Co., 176 N. C., 545, the law is thus stated: “The defendant denied liability and refused to pay the loss. This is a waiver of the right to demand proof of loss and the denial of liability dispenses with the necessity of filing such proof. Gerringer v. Insurance Co., 133 N. C., 407; Parker v. Insurance Co., 143 N. C., 343; Lowe v. Fidelity Co., 170 N. C., 446.” Does the subsequent act of an owner or mortgagor in taking out additional insurance without the knowledge or consent of the mortgagee to protect alone his interest in mortgaged property, ipso facto, reduce proportionately the amount of prior insurance held by a mortgagee or trustee of the same property under a New York Standard Mortgage Clause? We think not. Bennett v. Provident Fire Insurance Co., 198 N. C.. 174. 72 A. L. R., 275. *661 In Booth v. Hairston, 193 N. C., at p. 281, is the following: “Our system of appeals is founded on public policy and appellate courts will not encourage litigation by granting a new trial which could not benefit the litigant and the result changed upon a new trial, and the non-granting was not prejudicial to his rights.” The judgment of the court below is Affirmed.